PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

THOMAS MCCOY RICHARDSON, JR.,  No. 09-4072

Defendant-Appellant.

AOL LLC,

Amicus Supporting Appellee. 

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Martin K. Reidinger, District Judge.

(3:06-cr-00085-MR-1)

Argued: March 24, 2010

Decided: June 11, 2010

Before TRAXLER, Chief Judge, and WILKINSON and

DUNCAN, Circuit Judges.

Affirmed by published opinion. Chief Judge Traxler wrote the

opinion, in which Judge Wilkinson and Judge Duncan joined.
COUNSEL

ARGUED: Anthony Glen Scheer, RAWLS, DICKINSON &

SCHEER, PA, Charlotte, North Carolina, for Appellant. Amy

Elizabeth Ray, OFFICE OF THE UNITED STATES

ATTORNEY, Asheville, North Carolina, for Appellee. ON

BRIEF: Edward R. Ryan, United States Attorney, Charlotte,

North Carolina, for Appellee. Christopher G. Bubb, Vice

President, General Counsel, John R. LoGalbo, Assistant General Counsel, AOL LLC, Dulles, Virginia, for Amicus Supporting Appellee.

OPINION

TRAXLER, Chief Judge:

Thomas McCoy Richardson, Jr., pled guilty to violating 18

U.S.C. § 2252A(a)(1) & (b)(1) by "knowingly transport[ing]

and ship[ping] in interstate and foreign commerce, by means

of a computer, child pornography," J.A. 16, and to violating

18 U.S.C. § 2252A(a)(5) by "knowingly possess[ing] material

that contained images of child pornography," J.A. 16. In

doing so, Richardson preserved the right to appeal the district

court’s order denying his motion to suppress and quashing his

subpoena duces tecum under Rule 17(c)(2) of the Federal

Rules of Criminal Procedure.

On appeal, Richardson contends that AOL LLC ("AOL"),

an internet service provider ("ISP") with whom he had an email account, discovered the illegal images on which Richardson’s child pornography charges were based by conducting an

unconstitutional search on behalf of the Government. Richardson also contends that the search warrant subsequently

executed at his Charlotte-area apartment was not supported by

probable cause, rendering the evidence culled from his computer inadmissible. Finally, Richardson claims that the district

2 UNITED STATES v. RICHARDSON
court committed reversible error in granting AOL’s motion to

quash his subpoena seeking the production of documents that

would establish an agency relationship between AOL and the

Government with respect to the detection of AOL subscribers

involved in child pornography. We conclude that the district

court correctly rejected these arguments and affirm the district

court. 

I.

On June 10, 2004, AOL, pursuant to a mandatory reporting

requirement set forth in 42 U.S.C. § 13032(b)(1),1 reported to

the Cyber Tip Line at the National Center for Missing and

Exploited Children ("NCMEC") that AOL had detected the

transmission of child pornography images by a subscriber

using an e-mail address called knifeisland@aol.com.

NCMEC, also as mandated by the same federal law, passed

along this information to the North Carolina State Bureau of

Investigation ("SBI"), which, in turn, served AOL with an

administrative subpoena for subscriber information related to

the "knifeisland@aol.com" address. AOL determined that the

"knifeisland@aol.com" account was registered to Richardson

at 2541 Pine View Lane, Apartment H, Gastonia, North Carolina. The screen name "tr2066" was also linked to this

account. By August 2004, however, when SBI agents

received and followed up on this information, Richardson no

longer resided at the 2541 Pine View Lane address and no

forwarding address was available. 

The investigation of Richardson apparently stalled for

about one year. Then, on September 2, 2005, AOL reported

to NCMEC that it had detected the transmission of two e-mail

messages containing images depicting child pornography

from an account named "tr1029@aol.com" by a person using

the screen name "tr1029." NCSBI Agent J.D. White initiated

1This particular provision is no longer in effect. The reporting requirements were amended and are now codified in 18 U.S.C. § 2258A. 

UNITED STATES v. RICHARDSON 3
an investigation following this second report. Pursuant to

another administrative subpoena, AOL indicated that the

"tr1029@aol.com" account was registered to Richardson at

8508 Park Road, Charlotte, North Carolina. The Park Road

address, as it turned out, was the location of a UPS store. Further investigation by the NCSBI, however, revealed that Richardson was residing in Charlotte at 7805 Andover Woods

Drive, Apartment 604, and linked Richardson through his

driver’s license to both the Park Road address of the UPS

store (where Richardson had apparently received mail for a

period of time) and the Pine View Lane address in Gastonia

(where Richardson had established the knifeisland@aol.com

account).

NCSBI agents researched Richardson’s criminal history

and discovered that Richardson was a registered sex offender

in South Carolina as a result of two 1996 convictions. In the

first instance, Richardson was arrested and charged with performing a lewd act upon a child under 14 years of age after

he entered a Wal-Mart store in Florence, South Carolina,

grabbed the buttocks of a minor girl, and uttered an obscene

remark to her. He was ultimately convicted of assault and battery of a high and aggravated nature. In the second instance,

Richardson was convicted for exposing himself as he walked

through the same Wal-Mart. 

On November 17, 2005, Agent White applied for a search

warrant to search Richardson’s Andover Woods Drive apartment in Charlotte primarily for evidence of Richardson’s use

of a computer to view, store, and transmit images of child

pornography. In support of his probable cause showing, Agent

White included the information disclosed by AOL pursuant to

the administrative subpoenas and the details of the subsequent

investigation conducted by NCSBI. Additionally, Agent

White provided a summary of his background in criminal and

computer investigation as well as his special training in the

"investigation[ ] of child sexual exploitation and child pornography." J.A. 41. Based on his experience, Agent White

4 UNITED STATES v. RICHARDSON
indicated "[t]he use of computers to traffic in, trade, or collect

child pornography has become one of the preferred methods

of obtaining such materials . . . [because computers] provide[ ] a high degree of anonymity in obtaining child pornography . . . [and] a sense of privacy and secrecy not attainable

by other media." J.A. 50. White further explained in his affidavit that "[i]ndividuals involved in the possession and transportation of child pornography rarely, if ever, dispose of their

sexually explicit materials," which "are extremely valuable to

these individuals because of the difficulty, scarcity, expense,

and danger involved in their collection." J.A. 50. Noting that

even computer files that are deleted from the hard drive can

be retrieved through a forensic examination of the computer,

White asked the issuing judge to find "probable cause to

believe that Thomas Richardson’s residence, 7805 Andover

Woods Drive, Apartment 604, Charlotte, North Carolina, contains a computer or computers that have been used to communicate with individuals to acquire child pornography; store

images of child pornography, and distribute images of child

pornography." J.A. 51.

On November 17, 2005, law enforcement officers executed

the search warrant for Richardson’s Andover Woods apartment. The primary evidence recovered in the search was a

computer. Richardson indicated that he was the sole user of

the computer and admitted that he had sent and received child

pornography by email. Richardson also told officers that he

was "addicted to viewing [child pornography] over the Internet, but denied ever meeting or speaking by phone with anyone he met on the Internet under the age of 18." J.A. 211. A

forensic examination of Richardson’s computer revealed 28

images and 21 video files containing child pornography.

Some of these images included depictions of adults engaged

in illegal, obscene sexual acts with children between four and

nine years of age.

Richardson moved to suppress both the evidence seized in

the search of his home and his statements to law enforcement

UNITED STATES v. RICHARDSON 5
officers during the search. First, Richardson argued that in

reporting the contents of his email, AOL was acting as an

agent of the Government and had therefore conducted an

unconstitutional warrantless search of his private email communications. Second, Richardson argued that even if AOL

had not acted as a law enforcement agent in reporting the

emails, the issuing judge lacked probable cause to believe that

evidence of a child pornography offense would be located at

his apartment at the time of the search. 

Subsequently, in hopes of obtaining documentary support

for his argument that AOL was acting as an agent for the

Government, Richardson served AOL with a subpoena duces

tecum pursuant to Rule 17(c)(1) of the Federal Rules of Civil

Procedure requesting that AOL produce 

all records (including but not limited to emails,

postal correspondence, minutes/notes of meetings,

memoranda, and public relations material, and Congressional testimony) relating to AOL’s coordination

of efforts, training and/or strategic partnerships with

all agencies of the United States Department of Justice, the United States Postal Service, the Secret Service, the Internet Crimes Against Children Task

Force with the Department of Justice, and the

[NCMEC], regarding the detection and reporting of

child pornography content in emails and/or web

browsing activities by AOL subscribers or on its network.

J.A. 64. 

In response to the subpoena, AOL filed a motion to quash

on the grounds that the subpoena was grossly overbroad in

scope and that "compliance would be unreasonable or oppressive." Fed. R. Crim. P. 17(c)(2). AOL argued that Richardson’s subpoena was essentially a fishing expedition "based on

the unsupported legal theory that AOL is an agent of the

6 UNITED STATES v. RICHARDSON
United States," J.A. 58, and that compliance with the subpoena would require AOL "to carry out a search of its

immense paper files and data bases seeking that which does

not exist." J.A. 60. 

In support of its motion to quash, AOL submitted a declaration from AOL Assistant General Counsel John R. LoGalbo

primarily to show that there was no agency relationship

between AOL and the Government. LoGalbo denied that law

enforcement asked AOL to search Richardson’s email or otherwise participate in the investigation of Richardson "except

through the ordinary forms of compulsory legal process." J.A.

66. Instead, LoGalbo stated, AOL detected the illegal images

attached to Richardson’s email transmissions through AOL’s

Image Detection and Filtering Program ("IDFP"), one of several internally-developed scanning programs designed to keep

AOL’s systems secure. The IDFP, as summarized by the

LoGalbo Declaration, recognizes and compares the digital

"fingerprint" (known as a "hash value") of a given file

attached to a subscriber’s email with the digital "fingerprint"

of a file that AOL previously identified as containing an

image depicting child pornography. LoGalbo indicated that if

the IDFP detected a match suggesting that an email transmission contained child pornography images, then AOL notified

the NCMEC as required by 42 U.S.C. § 13032. According to

LoGalbo, "AOL developed and began using the IDFP in 2002

in order to protect its rights and property against lawbreakers,

prevent the network from being used to carry or store contraband (i.e., illegal child pornography), and fulfill its legal obligation to report the transmission . . . of child pornography on

its systems." J.A. 65.

The magistrate judge concluded that the subpoena was

unreasonably broad and, therefore, that Richardson failed to

show that all of the information sought by the subpoena was

relevant, admissible, and specific. See United States v. Nixon,

418 U.S. 683, 698-700 (1974). The district court adopted the

ruling of the magistrate judge. 

UNITED STATES v. RICHARDSON 7
The magistrate judge then recommended that Richardson’s

motion to suppress be denied. First, the magistrate judge concluded that the search warrant was supported by probable

cause and rejected Richardson’s argument that Agent White’s

affidavit failed to establish a sufficient nexus between evidence of the child pornography offense and the Andover

Woods apartment where the warrant was executed. The magistrate judge found that, based both on the allegations specifically related to Richardson and the "general ‘profile’" of child

pornographers, J.A. 214, "there was a fair probability that the

computer used by defendant for transmission of and storage

of [child pornography] would be found in his residence." J.A.

213. The district court adopted the recommendation of the

magistrate judge.2

Second, the magistrate judge rejected Richardson’s argument that AOL was acting as an agent for law enforcement

and therefore conducted a warrantless search. In concluding

that Richardson failed to carry his burden of establishing that

AOL served as an agent or instrument of the government, the

magistrate judge noted that AOL’s "discovery of [child pornography] associated with [Richardson’s] email account was

the result of routine scanning the company conducts to recognize files that may be detrimental to AOL." J.A. 216. The district court adopted this recommendation as well.

Following the denial of his motion to suppress, Richardson

pled guilty to transporting and shipping child pornography in

violation of 18 U.S.C. §§ 2252A(a)(1) & (b)(1), and to possessing child pornography in violation of 18 U.S.C.

§ 2252A(a)(5). Under the terms of his plea agreement, Richardson preserved his right to appeal both the denial of his

2

 The magistrate judge also concluded that even if the warrant lacked

probable cause, the good faith exception under United States v. Leon, 468

U.S. 897, 913 (1984), would apply. The district court, however, declined

to reach the issue of whether the law enforcement officers acted in good

faith. 

8 UNITED STATES v. RICHARDSON
motion to suppress and the granting of AOL’s motion to

quash. 

II.

Richardson believes that AOL, functioning as a government agent, conducted a constitutionally impermissible search

when it scanned his email communications for illicit images

of child pornography without a search warrant. If AOL was

a government agent, then probable cause and a warrant were

required before any search was undertaken. If, however, AOL

acted in a private capacity, then government activity is not

implicated and the Fourth Amendment does not apply. 

Assuming that AOL conducted a search within the meaning

of the Fourth Amendment, we conclude that AOL’s actions

did not equate to governmental conduct triggering constitutional protection. The Fourth Amendment guarantees citizens

the right to be free from "unreasonable searches and seizures."

U.S. Const. amend. IV. But for a few exceptions, warrantless

searches and seizures are "per se unreasonable." Schneckloth

v. Bustamonte, 412 U.S. 218, 219 (1973) (internal quotation

marks omitted). The Fourth Amendment, however, does not

protect against searches, no matter how unreasonable, conducted "by private individuals acting in a private capacity."

United States v. Jarrett, 338 F.3d 339, 344 (4th Cir. 2003);

see United States v. Jacobsen, 466 U.S. 109, 113 (1984).

Rather, the Fourth Amendment "proscrib[es] only governmental action," Jacobsen, 466 U.S. at 113, and thus "evidence

secured by private searches, even if illegal, need not be

excluded from a criminal trial," United States v. Ellyson, 326

F.3d 522, 527 (4th Cir. 2003) (internal quotation marks omitted). 

However, when a private individual conducts a search "as

an instrument or agent of the Government," Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 614 (1989), the

limits imposed by the Fourth Amendment apply, see Jarrett,

UNITED STATES v. RICHARDSON 9
338 F.3d at 344 ("The Fourth Amendment protects against

unreasonable searches and seizures by Government officials

and those private individuals acting as instruments or agents

of the Government." (alterations and internal quotation marks

omitted)). The defendant shoulders the burden of establishing

the existence of an agency relationship—"a fact-intensive

inquiry that is guided by common law agency principles."

Ellyson, 326 F.3d at 527; see Jarrett, 338 F.3d at 344. 

The question of whether a private entity such as AOL

serves as a mere conduit for the Government in performing a

search "necessarily turns on the degree of the Government’s

participation in the private party’s activities." Skinner, 489

U.S. at 614. "[T]here must be some evidence of Government

participation in or affirmative encouragement of the private

search before a court will hold it unconstitutional. Passive

acceptance by the Government is not enough." Jarrett, 338

F.3d at 346. Additionally, we generally look for evidence

bearing upon the question of "whether the private party’s purpose for conducting the search was to assist law enforcement

efforts or to further h[is] own ends." Ellyson, 326 F.3d at 527

(internal quotation marks omitted). 

Thus, the key factors bearing upon the question of whether

a search by a private person constitutes a Government search

are: "(1) whether the Government knew of and acquiesced in

the private search; and (2) whether the private individual

intended to assist law enforcement or had some other independent motivation." Jarrett, 338 F.3d at 344. 

There is no question that law enforcement agents did not

actually participate in the search at issue here. Richardson

does not dispute LoGalbo’s assertion that no law enforcement

agency specifically asked AOL to search Richardson’s email

or provided information about Richardson to cause AOL to

scan his emails. Neither did law enforcement officials request

that AOL aid in the investigation of Richardson "except

through the ordinary forms of compulsory legal process," i.e.,

10 UNITED STATES v. RICHARDSON
"two administrative subpoenas and a preservation request"

served pursuant to the Stored Communications Act "for the

purpose of identifying the name, address, and other subscriber

identifying information for an AOL client." J.A. 66; see 18

U.S.C. § 2703. There is nothing in the record to suggest that,

in fact, law enforcement agents were involved in the search

or investigation of Richardson’s email transmissions until

after AOL reported its discoveries to NCMEC. Likewise,

there is little evidence in this record to suggest that AOL

intended to assist the Government in its case against Richardson. Without the unspecified discovery materials to which he

believes he is entitled pursuant to the subpoena duces tecum

quashed by the district court, Richardson is essentially forced

to concede that there is little evidence in this record upon

which to demonstrate the existence of a de facto agency relationship between AOL and the Government. 

Instead, Richardson contends that by mandating AOL’s

compliance with the reporting scheme set forth in 42 U.S.C.

§ 13032, the Government actively encouraged the search of

his email and transformed AOL into its agent. According to

Richardson, the Government, by regulating ISP conduct, did

not simply acquiesce to AOL’s actions, but instead was

actively involved in the search so as to "trigger[ ] Fourth

Amendment protections, regardless of the private party’s

intentions." Presley v. City of Charlottesville, 464 F.3d 480,

488 n.7 (4th Cir. 2006).

Richardson draws an analogy to the Supreme Court’s decision in Skinner v. Railway Labor Executives’ Association for

the basis of his argument. In Skinner, the Court considered

whether the regulatory scheme imposed by the Federal Railroad Administration ("FRA") for mandatory and permissive

drug testing by private railroads implicated the Fourth

Amendment. Subpart C of the regulations, entitled "PostAccident Toxicological Testing," required railroads to gather

blood and urine samples from employees involved in serious

accidents resulting in fatalities, injuries or significant property

UNITED STATES v. RICHARDSON 11
damage. See Skinner, 489 U.S. at 609. Because the regulations in subpart C mandated the means, methods and procedures for testing, the Court concluded that "[a] railroad that

complies with the provisions of Subpart C of the regulations

does so by compulsion of sovereign authority, and the lawfulness of its acts is controlled by the Fourth Amendment." Id.

at 614. 

A more difficult question for the Skinner Court, however,

was whether the Fourth Amendment was implicated when a

private railroad tested its employees under certain nonmandatory regulations. Subpart D of the FRA’s regulatory

scheme, entitled "Authorization to Test for Cause," was permissive, authorizing breath or urine tests when a supervisor

had a "‘reasonable suspicion’" that a worker’s actions "contributed to the occurrence or severity of [an] accident" or that

an employee was "under the influence of alcohol." Id. at 611.

Although permissive, Subpart D nevertheless dictated how the

blood and urine tests were to be conducted: "As in the case

of samples procured under Subpart C, the regulations set forth

procedures for the collection of samples, and require[d] that

samples be analyzed by a method that is reliable within

known tolerances." Id. at 611-12 (internal quotation marks

omitted). Moreover, the regulations "confer[red] upon the

FRA the right to receive certain biological samples and test

results procured by railroads pursuant to Subpart D." Id. at 615.3

3Subpart D also prescribed formal procedures in the event samples procured under Subpart D were used for disciplinary purposes: 

Subpart D further provides that whenever the results of either

breath or urine tests are intended for use in a disciplinary proceeding, the employee must be given the opportunity to provide

a blood sample for analysis at an independent medical facility.

§ 219.303(c). If an employee declines to give a blood sample, the

railroad may presume impairment, absent persuasive evidence to

the contrary, from a positive showing of controlled substance residues in the urine. The railroad must, however, provide detailed

notice of this presumption to its employees, and advise them of

their right to provide a contemporaneous blood sample. 

Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 611 (1989). 

12 UNITED STATES v. RICHARDSON
The Court concluded that, despite the non-mandatory

nature of Subpart D, a private railroad acts as a government

agent when conducting breath or urine tests under that section:

The fact that the Government has not compelled a

private party to perform a search does not, by itself,

establish that the search is a private one. Here, specific features of the regulations combine to convince

us that the Government did more than adopt a passive position toward the underlying private conduct.

Id. at 615. The Court explained that the Government’s intent

to actively participate and exert a measure of control over any

search under Subpart D was apparent from the fact that the

regulations preempted state law and "supersede[d] any provision of a collective bargaining agreement, or arbitration award

construing such an agreement." Id. (internal quotation marks

omitted). Additionally, the Court noted a private railroad was

not permitted to "divest itself of, or otherwise compromise by

contract, the authority conferred by Subpart D," and its

employees were not "free to decline . . . to submit to breath

or urine tests under the conditions set forth in Subpart D." Id.

Based on those provisions, the Court in Skinner concluded

that any testing under Subpart D was not "primarily the result

of private initiative" and thus triggered application of the

Fourth Amendment. Id. The regulations in Skinner clearly

demonstrated "the Government’s encouragement, endorsement, and participation," id. at 615-16, by "remov[ing] all

legal barriers" to such testing, by making clear the Government’s "strong preference for testing" and "its desire to share

the fruits of such intrusions," and by "mandat[ing] that the

railroads not bargain away the authority to perform tests

granted by Subpart D." Id. at 615. 

We reject Richardson’s attempt to draw an analogy

between the simple reporting requirement of § 13032 and the

UNITED STATES v. RICHARDSON 13
regulatory scheme at issue in Skinner authorizing a search.

The version of § 13032 in effect when AOL reported Richardson required only that an ISP such as AOL report to the Cyber

Tip Line at NCMEC in the event it "obtain[ed] knowledge of

facts or circumstances from which a violation of section . . .

2252A . . . involving child pornography . . . [wa]s apparent."

42 U.S.C. § 13032(b)(1). Unlike the regulatory scheme at

issue in Skinner, § 13032(b)(1) neither directed AOL to

actively seek evidence of child pornography in certain circumstances nor prescribed the procedures for doing so in the

event that AOL decided to ferret out subscribers using its system to transmit illegal digital images. In fact, Congress made

abundantly clear that § 13032(b)(1) was not to be interpreted

as requiring an ISP to monitor a subscriber’s internet activity,

explicitly stating that "[n]othing in this section may be construed to require a provider of electronic communication services or remote computing services to engage in the

monitoring of any user, subscriber, or customer of that provider, or the content of any communication of any such person." 42 U.S.C. § 13032(e). 

The extensive regulatory scheme at issue in Skinner suggested a "strong preference for testing," having eliminated "all

legal barriers to the testing." Skinner, 489 U.S. at 615. Indeed,

the FRA’s regulatory scheme forbade railroads from contracting away the authority to perform such tests via the collective

bargaining process. By contrast, nothing in § 13032 precludes

AOL or any other ISP from entering into subscriber agreements that actually preclude monitoring or the use of a scanning tool, nor does any portion of § 13032 remotely suggest

a congressional preference for monitoring.

Moreover, the penalty provision for failure to report contained in § 13032 does not persuade us to the contrary. Richardson suggests that ISPs such as AOL would be compelled

as a practical matter to monitor their subscribers in the face

of substantial monetary fines imposed against "[a] provider

. . . who knowingly and willfully fails to make a report" under

14 UNITED STATES v. RICHARDSON
§ 13032(b)(1). 42 U.S.C. § 13032(b)(4).4

 As AOL points out,

however, the converse is just as likely to be true, if not more

so—if substantial fines are imposed for the failure to report

known facts suggesting a violation of federal child pornography laws, ISPs and others subject to such penalties might just

as well take steps to avoid discovering reportable information.

Finally, we reject Richardson’s argument that Congress’

intent to deputize ISPs in the Government’s effort to fight

child pornography on the Internet is reflected by the immunity

from civil liability afforded by § 13032(c). See 42 U.S.C.

§ 13032(c) ("No provider or user of an electronic communication service or a remote computing service to the public shall

be held liable on account of any action taken in good faith to

comply with or pursuant to this section."). Richardson

believes this is especially true given the policy statements

contained in the Communications Decency Act of a national

policy "to remove disincentives for the development and utilization of blocking and filtering technologies that empower

parents to restrict their children’s access to objectionable or

inappropriate online material" and "to ensure vigorous

enforcement of Federal criminal laws to deter and punish trafficking in obscenity . . . by means of computer." 47 U.S.C.

§§ 230(b)(4) & (5). 

The plain language of § 13032(c) clears the way for ISPs

to report violations of the child pornography laws, not investigate them. The provision was clearly aimed at immunizing

civil claims for mistaken and incorrect reports issued to the

NCMEC and in no way encourages surreptitious searches.

The Communications Decency Act is likewise of no assistance to Richardson, as it aims "to encourage service providers to self-regulate the dissemination of offensive material

over their services" by protecting service providers from law4An initial failure to report carried a fine of up to $50,000, while a subsequent failure carried a possible fine of $100,000. See 42 U.S.C.

§ 13032(b)(4). 

UNITED STATES v. RICHARDSON 15
suits casting them "in the role of a publisher." Zeran v. America Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997).

We conclude that the statutory provision pursuant to which

AOL reported Richardson’s activities did not effectively convert AOL into an agent of the Government for Fourth Amendment purposes. 

III.

We review the district court’s order granting AOL’s motion

to quash under Rule 17(c) of the Federal Rules of Criminal

Procedure for an abuse of discretion. See United States v.

Fowler, 932 F.2d 306, 311 (4th Cir. 1991). In this context, an

abuse of discretion occurs when the court uses an erroneous

legal standard or bases its decision on clearly erroneous facts.

See United States v. Under Seal (In re Grand Jury), 478 F.3d

581, 584 (4th Cir. 2007). 

The subpoena duces tecum issued by Richardson to AOL

sought the production of essentially any document that would

support his theory that AOL was in an agency relationship

with the Government:

YOU ARE . . . COMMANDED to bring with you

the following document(s) or object(s): . . . [A]ll

records (including but not limited to emails, postal

correspondence, minutes/notes of meetings, memoranda, and public relations material, and Congressional testimony) relating to AOL’s coordination of

efforts, training and/or strategic partnerships with all

agencies of the [U.S.] Department of Justice, . . .

Postal Service, the Secret Service, the Internet

Crimes Against Children Task Force . . . and the

[NCMEC], regarding the detection and reporting of

child pornography content in emails and/or web

browsing activity by AOL subscribers or on its network.

16 UNITED STATES v. RICHARDSON
J.A. 64. 

Under Rule 17(c)(2), the court "may quash or modify" a

subpoena duces tecum "if compliance would be unreasonable

or oppressive." Fed. R. Civ. P. 17(c)(2). A subpoena is unreasonable or oppressive if it is "excessively broad" or "overly

vague." In re Grand Jury, 478 F.3d at 584. In that vein, a fundamental concern is that the subpoena duces tecum is not

intended to provide a means of pretrial discovery; rather, its

primary purpose is simply "to expedite the trial by providing

a time and place before trial for the inspection of subpoenaed

materials." Nixon, 418 U.S. at 689-99; see Fowler, 932 F.2d

at 311 (rejecting criminal defendant’s application for a subpoena duces tecum in that it "was little more than a duplication of [his] discovery motion").

Richardson bears the burden under Nixon of showing that

the material he has subpoenaed meets the requirements of "(1)

relevancy; (2) admissibility; [and] (3) specificity." Nixon, 418

U.S. at 700. The subpoena duces tecum must be "made in

good faith and [must] not [be] intended as a general ‘fishing

expedition.’" Id. 

Richardson contends that any information tending to show

a partnership or agency relationship between AOL and the

Government was highly relevant to his Fourth Amendment

claim and that the district court’s refusal to require compliance precluded him from developing this claim. While such

information might indeed be relevant, Richardson fails to

address the principal deficiency in his subpoena—the lack of

specificity. Without it, Richardson is merely fishing for evidence that might support his theory, as if he were in the discovery phase of a civil action. Even on appeal, the phrasing

of Richardson’s argument—that "he should be allowed to discover the facts" supporting his theory that AOL and the Government were in a partnership—betrays his intention to

misuse the subpoena duces tecum as a discovery mechanism

to develop his agency claim. As we have explained consisUNITED STATES v. RICHARDSON 17
tently, "a Rule 17 subpoena duces tecum cannot substitute for

the limited discovery otherwise permitted in criminal cases

and the hope of obtaining favorable evidence does not justify

the issuance of such a subpoena." United States v. Caro, 597

F.3d 608, 620 (4th Cir. 2010) (internal quotation marks omitted).

We conclude, therefore, that the district court did not abuse

its discretion in granting AOL’s motion to quash. 

IV.

Finally, Richardson challenges the district court’s conclusion that the search warrant was supported by probable cause.

When considering a district court’s denial of a suppression

motion, we review factual findings for clear error and legal

conclusions de novo. See United States v. Blake, 571 F.3d

331, 338 (4th Cir. 2009), cert. denied, 130 S. Ct. 1104 (2010).

And, "[a]lthough we review de novo the denial of the motion

to suppress by the district court, the determination of probable

cause by the issuing magistrate is entitled to great deference

from this court." United States v. Hodge, 354 F.3d 305, 309

(4th Cir. 2004). Our duty "‘is simply to ensure that the magistrate had a substantial basis for concluding that probable

cause existed.’" Id. (quoting Illinois v. Gates, 462 U.S. 213,

238-39 (1983)). 

Although the concept of probable cause defies a precise

definition, it "exist[s] where the known facts and circumstances are sufficient to warrant a man of reasonable prudence

in the belief that contraband or evidence of a crime will be

found" in the place to be searched. Ornelas v. United States,

517 U.S. 690, 696 (1996). A probable cause assessment

requires the issuing judge to decide whether, given the totality

of the circumstances, there is a "fair probability that contraband or evidence of a crime will be found in a particular

place." Gates, 462 U.S. at 238. 

18 UNITED STATES v. RICHARDSON
Richardson contends that there was no probable cause

because the information supporting the issuance of the search

warrant was stale. See United States v. McCall, 740 F.2d

1331, 1335-36 (4th Cir. 1984) ("A valid search warrant may

issue only upon allegations of facts so closely related to the

time of the issue of the warrant as to justify a finding of probable cause at that time." (internal quotation marks omitted));

id. at 1336 ("[E]vidence seized pursuant to a warrant supported by ‘stale’ probable cause is not admissible in a criminal trial to establish the defendant’s guilt."). In this regard,

Richardson claims that the fatal flaw in Agent White’s affidavit is that it failed to specify the date on which he possessed

or emailed the illegal images; at most, Richardson contends,

the supporting affidavit established probable cause that he

possessed and distributed child pornography at some unspecified time in the past. Furthermore, Richardson suggests that

the only information offered to the issuing judge to "freshen"

the probable cause was boilerplate "profile" information about

the general tendencies of child pornography collectors, e.g.,

that "[i]ndividuals involved in the possession and transportation of child pornography rarely, if ever, dispose of their sexually explicit materials" and tend to store their collected

materials in their "residence or other secure location to ensure

convenient and ready access." J.A. 50. If Agent White’s affidavit establishes probable cause, Richardson concludes, then

the residence of anyone who has ever possessed or distributed

any such materials at some point in the past will be subject to

a search so long as the supporting affidavit includes similar

boilerplate language. See United States v. Prideaux-Wentz,

543 F.3d 954, 957, 958-59 (7th Cir. 2008) (concluding affidavit contained stale information despite description of "‘child

pornography collector characteristics’" where the government

did not identify dates on which illegal images were uploaded

and record indicated that images could have been obtained as

much as four years prior to the warrant). We cannot agree. 

Although "there is no question that time is a crucial element of probable cause," McCall, 740 F.2d at 1335, the exisUNITED STATES v. RICHARDSON 19
tence of probable cause cannot be determined "by simply

counting the number of days between the occurrence of the

facts supplied and the issuance of the affidavit," id. at 1336

(internal quotation marks omitted). Instead, we "look to all the

facts and circumstances of the case, including the nature of

the unlawful activity alleged, the length of the activity, and

the nature of the property to be seized." Id. In the context of

child pornography cases, courts have largely concluded that a

delay—even a substantial delay—between distribution and

the issuance of a search warrant does not render the underlying information stale. This consensus rests on the widespread

view among the courts—in accord with Agent White’s affidavit—that "collectors and distributors of child pornography

value their sexually explicit materials highly, ‘rarely if ever’

dispose of such material, and store it ‘for long periods’ in a

secure place, typically in their homes." United States v. Lacy,

119 F.3d 742, 746 (9th Cir. 1997); see United States v. Watzman, 486 F.3d 1004, 1008 (7th Cir. 2007) (rejecting challenge

to probable cause where three months elapsed between the

crime and issuance of the warrant where agent testified child

pornographers retain their collected materials for long periods

of time); United States v. Gourde, 440 F.3d 1065, 1072 (9th

Cir. 2006) (en banc) (concluding that "[t]he details provided

on the use of computers by child pornographers and the collector profile" provided support for a finding of probable

cause); United States v. Riccardi, 405 F.3d 852, 861 (10th

Cir. 2005) (finding probable cause based, in part, on "the

observation that possessors often keep electronic copies of

child pornography"); United States v. Lemon, 590 F.3d 612,

615 (8th Cir. 2010) ("Many courts, including our own, have

given substantial weight to testimony from qualified law

enforcement agents about the extent to which pedophiles

retain child pornography."), cert. denied, No. 90-10170, 2010

WL 1531424 (May 17, 2010); United States v. MoralesAldahondo, 524 F.3d 115, 119 (1st Cir. 2008) (holding that

three-year delay between acquisition of child pornography

and application for warrant did not render supporting informa20 UNITED STATES v. RICHARDSON
tion stale since "customers of child pornography sites do not

quickly dispose of their cache"), cert. denied, 129 S. Ct. 512

(2008). 

Here, the information provided by Agent White established

that no more than four months had passed from the time that

Richardson emailed an image depicting child pornography

using his "tr1029@aol.com" account until the warrant was

issued on November 17, 2005. Although Agent White did not

supply the precise date of the email transmission, he indicated

that the "tr1029@aol.com" account was established by Richardson on July 22, 2005, and the offending email could thus

not have been sent before that time. We conclude that a delay

of four months does not preclude a finding of probable cause

based on staleness in light of the other information supplied

by Agent White, including the previous instance in which

Richardson used an AOL account to send such images and

Agent White’s sworn statement that child pornographers

"rarely, if ever, dispose of their sexually explicit materials,"

and that "even if a computer file is deleted from a hard drive

or other computer media, a computer expert is still likely to

retrieve . . . such files through scientific examination of the

computer." J.A. 50. 

Richardson raises one other challenge to the search warrant

that is closely related to the idea of staleness. He contends that

the affidavit failed to include any specific facts suggesting

that evidence of these offenses would be found in the Andover Woods apartment. That is, Richardson argues the affidavit

failed to establish a nexus with the place to be searched.

According to Richardson, the only basis in the supporting

affidavit for finding the required nexus to Richardson’s Andover Woods apartment was the generic, boilerplate "child pornographer profile." Richardson believes that there must be

some "specific" allegation that he was keeping evidence of

these crimes at the Andover Woods apartment—for example,

that he was using the same computer at the new residence. We

disagree. 

UNITED STATES v. RICHARDSON 21
Richardson’s argument ignores the reasonable, commonsense inferences that an issuing magistrate is permitted to

draw from the totality of the circumstances in assessing probable cause. As we have observed before, "the nexus between

the place to be searched and the items to be seized may be

established by the nature of the item and the normal inferences of where one would likely keep such evidence." United

States v. Anderson, 851 F.2d 727, 729 (4th Cir. 1988). Agent

White’s affidavit linked Richardson’s email accounts, which

he used to distribute child pornography, to his previous and

current (at the time of the warrant) addresses. The totality of

the evidence, including this information, provided the issuing

magistrate with a substantial basis for concluding that there

was a fair probability that the computer Richardson used to

engage in these unlawful activities was kept in his current residence. 

V.

For the foregoing reasons, we affirm the order of the district court denying Richardson’s motion to suppress and

granting AOL’s motion to quash the subpoena duces tecum.

AFFIRMED

22 UNITED STATES v. RICHARDSON